88 Ark. 604 | Ark. | 1909
(after stating the facts.) We think the decree of the chancellor was' erroneous, and that it would be inequitable to declare a forfeiture under the facts disclosed in the record. Braddock v. England, 87 Ark. 393, and cases cited. Besides, the unpaid notes were negotiable, and some of them net yet due, and the contract contemplates a surrender of the notes if a forfeiture is declared. In his letter to Guinn, Beach only offers to cancel and deliver the notes to him on Guinn’s surrendering his copy of the contract properly assigned. The notes were never cancelled or surrendered to Guinn. See Staley v. Murphy, 47 Ill. 243.
Counsel for appellees claim that the record shows that it does not contain all the evidence, and in support of their contention cite the case of Hardie v. Bissell, 80 Ark. 79. In that case,. Riddicic, J., speaking for the court, said:
“We have to look to the record alone; and as the record recites that tax receipts and also the record of tax receipts were read in evidence, and as these are not found in the transcript here, we must presume that the chancery court had before it evidence which the transcript does not contain.” To the same effect, see Matlock v. Stone, 77 Ark. 199 and East v. Key, 84 Ark. 429.
So, too, in the case of White v. Smith, 63 Ark. 513, which was an appeal from the Pope Circuit Court in chancery, Riddick, J. said: “We are of the opinion that the decree of the circuit court should be affirmed. The record shows that the case was heard partly on evidence taken orally at the bar of the court, and this oral evidence was not reduced to writing or preserved by bill of exceptions, and is not contained in the transcript upon which the case was submitted for decision here.”
The above decisions are based upon the fact that the record did not show the evidence upon which the decree was based, and for that reason this court could not tell whether or not the cause was correctly decided in the chancery court. In such cases the presumption is that the omitted evidence was sufficient to sustain the decree of the chancellor.
In the case of Lenon v. Brodie, 81 Ark. 208, the decree, after reciting in part upon what the cause was heard, continuing, said: “The depositions of witnesses [were] taken ore tenus at the bar of the court, and agreed to be filed and used as depositions in the case.” The certificate of the clerk to the transcript was in the same language as the certificate in the present case. The court held that it was sufficient to show the evidence upon which the case was heard. The rule is that the transcript must show all the evidence upon which the cause is 'heard, and, if there is any conflict between the certificate of the clerk to the transcript and the recitals of the decree in that respect, the latter governs.
The decree in the present case recites that the cause was submitted “upon the complaint and amended complaint of plaintiffs, the answer of the defendant, and the depositions of A. D. Beach, J. E. Turpin and T. G. Malloy, and other evidence.” The clerk of the chancery court certifies that “the annexed and foregoing 52 pages of within typewritten matter contains a true, correct and compared transcript of all the pleadings, papers, files and entries of proceedings in the action styled in the caption, as hath appeared by comparing the same with the originals thereof now on file'and of record in my office.” The original contract, the notes marked paid and the letter of date of December 8, 1906, from A. D. Beach to. Willis Guinn are included in the transcript, and are referred to and made exhibits to the depositions. These instruments of writing are independent evidence. The object of the witness referring to the exhibits is to prove them to be what they purport to be, and the provision of the statute requiring exhibits to be attached to the deposition, etc., was only intended for greater certainty and security in proving them. Atkins v. Guice, 21 Ark. 174; Nick’s Heirs v. Rector, 4 Ark. 276. We must indulge the presumption that the “other evidence” mentioned in the recitals of the decree is these instruments of writing referred to in the depositions as exhibits. They are contained in the transcript and certified by the clerk as having been introduced in evidence, and this is not contradicted by the recitals of the decree. Hence we conclude that it is sufficiently shown that the transcript contains all the evidence upon which the cause was heard.
Therefore, the decree of the chancellor is reversed, and the cause remanded with directions to enter a decree for specific performance upon the payment of the balance of the purchase money in accordance with the prayer of the complaint.
